Sydney Tower Restaurants Pty Ltd v Zhang & Anor

APPELLANT Mr P Kite SC and Mr S Prince of counsel Solicitor: Mr A Duc Restaurant & Catering Industry Association of NSW LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENTS Mr R J Buchanan QC and Mr T McAvoy of counsel Solicitor: Mr D Zabow Zabow & Wise Lawyers

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Coram: Walton J, Vice-President Staff J Backman J

SYDNEY TOWER RESTAURANTS PTY LTD V PETER TING FANG ZHANG & ANOR

Application for Leave to Appeal and Appeal against Decision and Orders of the Chief Industrial Magistrate given on 11 September 2003 and 23 October 2003 in Matter No 156611 of 2002 and 156612 of 2002

1. This is an application for leave to appeal and appeal pursuant to s 197 of the Industrial Relations Act 1996 ("the Act") from a decision of the Chief Industrial Magistrate given on 11 September 2003 in Matter Nos 02/156611 and 02/156612.

2. In the decision of 11 September 2003, the Chief Industrial Magistrate found that the appropriate classification for each employee under the Restaurant Employees (State) Interim Consolidated Award ("the Award") was Grade 4. Given that the employees had been classified at a lower level (Grade 3), it followed that the employees had been underpaid, leading to orders being made. This decision was the subject of this appeal. His Honour also found that the employees were entitled to a split shift allowance, a meal allowance and a laundry allowance. The awarding of the laundry allowance is also the subject of an appeal. Orders were made that the first respondent be paid an amount of $9,377.93 and the second respondent, $10,234.49. In each case his Honour ordered the appellant to pay interest and costs to the respondents.

The Proceedings Below 3. The proceedings were brought by the respondents who were employed as waiters at the Centrepoint Tower Restaurant in Sydney, an a la carte waiter service restaurant, specialising in international cuisine. The respondents were employed from May 1995 in the case of Mr Wan and November 1995 in the case of Mr Zhang to 16 August 2001. It was common ground in the proceedings below that the respondents were employed as "permanent casual" at rates of pay for casuals contained in the Award on or after November 1997 at Grade 3 rates. The respondents were also paid under the 1991 Award.

4. His Honour found that the full range of duties and responsibilities undertaken by the respondents were not set out in any of the graded award categories. His Honour found that the employees carried out the specialist duties of the kind found in the definition of Grade 4 of the Award.

5. A critical feature in his Honour's view, was the responsibility borne by the respondents with respect to money. His Honour observed that in a normal restaurant situation, responsibility for ensuring that an account was paid, and customer satisfaction was maintained, would rest with the manager. At the Sydney Tower Restaurant, however, the installation of a computerised point of sale system effectively forced the responsibility downwards onto the senior waiters. The system allowed the waiters to order food and drinks from the restaurant floor without having to attend the kitchen or the bar and present bills and receipt payment without having to go through a central cash register.

6. After considering the duties undertaken by the respondents and their responsibilities, his Honour was satisfied that they attracted a Grade 4 classification, rather than a Grade 3 under the Award.

Grounds of Appeal 7. Mr P Kite SC and Mr S Prince of counsel appeared for the appellant. The grounds of appeal relied upon by Mr Kite can be essentially summarised as follows:

(i) his Honour erred in the construction of the grades in the 1997 Award in classifying the respondents as Grade 4 employees;

(ii) his Honour erred in failing to consider the proportion of silver service and decanting of wine duties performed by the respondents in relation to their other duties;

(iii) his Honour erred in not giving enough weight to the evidence led by the appellant regarding the amount of silver service and decanting of wine performed by the respondents and giving too much weight to the cash handling responsibilities of the respondents;

(iv) his Honour erred in finding the laundry allowance under cl 23 of the 1997 Award was payable when clothes are specifically required by the employer for use at work in circumstances where these clothes are not "special apparel";

(v) his Honour erred in awarding superannuation payments where no entitlement to superannuation exists under the Award and no jurisdiction other than s 365 of the Industrial Relations Act 1996 was invoked.

8. In respect of the last ground of appeal, we note that the written submissions provided by the appellant did not address this issue. This issue was also not pressed in the oral submissions advanced by Mr Kite. Further, Mr Kite conceded during the course of the hearing before us that his client would not oppose the payment of monies under his Honour's orders, although his client continued to press for leave to appeal because of the issues of construction raised in grounds (i) and (iv) above.

9. The appellant and the respondent were heard on the questions of both leave to appeal and the substantive appeal to the extent that those matters were argued before us.

Leave to Appeal and the Nature of the Appeal 10. An appeal under s 197 of the Act requires the appellant to seek leave under s 188 of the Act. It is well established that such an appeal is not to be heard by the Full Bench as a hearing de novo, but must be governed by the principles applicable to appeals generally brought under Pt 7 of ch 4 of the Act.

The appellant, in arguing that leave to appeal should be granted, relied upon the decision in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 where it was submitted the Commission held that where substantial issues of law or principle which would have widespread practical application are involved, leave to appeal is more likely to be granted. It was further submitted that the issues that arise on the appeal would be of general application in the construction of the award in a very large sector of the New South Wales economy.

Mr R J Buchanan QC and Mr T McAvoy of counsel, who appeared for the respondents, submitted that leave to appeal should be refused as the appeal turned on limited questions of fact in the circumstances presented by a single restaurant.

In addition to the limitation proffered by the appellant as to the issues on appeal we have earlier mentioned, the appellant also made no challenge to the findings of fact made by his Honour (subject to the finding by his Honour as to the normal practice for handling monies by managers at restaurants). We note that there was no evidence before his Honour directed to the restaurant industry as a whole and how that industry would be affected by his Honour's decision.

His Honour's decision was based on the characteristics of the Centrepoint Tower Restaurant.

It is clear that the issue which remains in this appeal concerns the proper construction of cl 3 and cl 23 of the Award. This issue underpins the appellant's application for leave to appeal.

The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46] and Zoological Parks Board of New South Wales v Australian Workers' Union, New South Wales and others [2004] NSWIRComm 85. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used.

The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 56 NSWLR 512, (2002) 120 IR 401 at [46] as follows: [46] The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408.

Grade 4 18. It was argued that his Honour misconstrued the definitions of Grades 3 and 4 found in cl 3 of the Award. On one reading of his Honour's judgment, a finding seems to be made that the definition for Grade 4 could be satisfied on an alternative basis that an employee had specialist duties or was engaged in a fine dining establishment. 19. Mr Buchanan conceded that such a construction would be wrong but that, if the entirety of his Honour's decision was considered, it was plain that his Honour did not approach the matter that way. What he considered was that the appellant was a fine dining restaurant (a fact not contested on appeal) and there were aspects of the duties of the respondent which, on balance, constituted specialist duties for the purpose of the clause. This submission was, in our view, correct.

20. When considered in the light of cl 3.4 of the Award, and his Honour's findings of fact as to the specialist duties of the respondents at this particular workplace, we think it was properly open to his Honour to make the conclusion he did, that being that the correct classification was Grade 4.

Laundry Allowance 21. This part of the appeal raises similar issues as there was some ambiguity in his Honour's decision. However, we consider that, on balance, his Honour did not misconstrue the provisions of cl 23 of the Award, although, plainly, his Honour should have provided reasons more closely directed to the provision.

22. There was no issue that the definition of "special clothing" is to be derived from cl 23.2 of the Award. No reference to the dictionary definition of the word "special" is required or appropriate. The particular issue raised in this appeal is whether the words appearing in cl 23.2, "which the employee could not use for everyday use", properly apply to the circumstances of this case. We consider the words "could not use" in cl 23.2 are wide enough to include not only the inability to use the clothing for general use because of its peculiar or unusual nature but also because the conditions for its use were such as to preclude its every day use.

23. In this case, the evidence showed the trousers were required to be laundered every day for use in a fine dining establishment. This requirement meant that the trousers were not available for general use and his Honour was correct in finding the laundry allowance applied to the trousers. We note that the respondent does not press for payment for the socks and shoes referred to in his Honour's decision.

Leave to Appeal 24. In these circumstances, we consider that leave to appeal should be refused. There is no industry wide implication from the decision at first instance on the evidence before us. Further, we have not found any error by his Honour as to the application of the Award to the particular facts and circumstances in this case. In light of that finding we note that, even if there was an error of construction, we would nonetheless find there was an insufficiency of grounds for leave to appeal.

ORDERS We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The appellant is to pay the respondents' costs of the appeal in an amount as agreed, or, in default of agreement, as assessed.

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